Pressuring Harassers to Quit Can End up Protecting Them
By Katherine Ku
January 5, 2018
|Judge Alex Kozinski retired from the U.S. Circuit Court of Appeals for the 9th Circuit last month. (Paul Sakuma/Associated Press)|
When I learned that Judge Alex Kozinski was retiring, after more than a dozen women accused him of inappropriate conduct and sexualized comments, part of me was relieved.
I clerked for Kozinski in the U.S. Court of Appeals for the 9th Circuit 14 years ago and found his chambers to be a hostile, demeaning and persistently sexualized environment. I had anticipated an arduous apprenticeship with this brilliant jurist and writer. I did not expect how controlling he would be: wanting to approve the location of my apartment, complaining when his clerks wanted salad for lunch instead of whatever he was having. On one occasion, he crumpled up a printout of an email draft and threw it at me. He regularly diminished women and their accomplishments; when discussing newly selected Supreme Court clerks, he surmised, using a vulgar term, that one was lesbian. On another day, he gestured for me to come over to the computer in his office and asked me to look at a photo — unrelated to any case we were working on — of a nude man. For the rest of my year-long clerkship, I closed the door to my office and communicated with the judge as little as possible.
My experience was mild, though, compared with what other women have reported: how Kozinski showed them pornography on multiple occasions and wanted to know if it turned them on, asked them what people like them did for sex, encouraged them to exercise naked, propositioned them for sex and groped them even after they said no. In his resignation letter, Kozinski wrote that he has “always had a broad sense of humor” but apologized that he “may not have been mindful enough of the special challenges and pressures that women face in the workplace.” (His lawyer declined to comment on the characterizations in this essay.)
I’m glad to see him leave the bench. He should not be in a position to judge cases, including those involving sexual harassment.
Another part of me, however, is frustrated. With his immediate retirement, it appears that he has essentially shut down the federal judiciary’s investigation of his conduct and deflected further revelations in the press. That allows him to disappear, quietly receiving his pension, until the outrage dies down. It allows him a greater chance at redemption.
And indeed, Kozinski, 67, is a talented and restless individual. In a few years, we may see an attempt at quiet reemergence — not on the federal bench, but perhaps through a law school teaching appointment or in the realm of private dispute resolution. He would not need the income; his pension makes that a nonissue. But such a position would provide an outlet for his energies, as well as allow him to amend his legacy.
Have no doubt: Although the #MeToo movement is rightly being celebrated for bringing down men who have abused their power, many of these men are not at the end of their careers. Already, the process of salvage has begun. Talent agent Adam Venit, accused of groping by actor Terry Crews, had to relinquish his position as head of WME’s motion picture division, but he was back at the agency after a 30-day unpaid suspension. New York Times star reporter Glenn Thrush, accused of inappropriate behavior by four female journalists, has been reassigned from the high-profile White House beat but is scheduled to return to the newsroom this month, after two months’ unpaid leave and training, counseling and substance abuse treatment.
Rehabilitation can be an appropriate outcome. But how — and how soon — should transgressors now on the sidelines be reintegrated into workplaces? How will the harms to their victims be balanced and addressed? And who decides? The answers will vary depending on the organization and the allegations at issue. Uniformly, though, perceptions of the integrity and fairness of these determinations will depend on whether there has been an accounting of an alleged wrongdoer’s actions.
It’s noteworthy that the Times did not decide whether Thrush would return to its newsroom until it completed an investigation that involved interviewing more than 30 people and resulted in a written report reviewed by Dean Baquet, the executive editor, and other top editors.
By contrast, it appears that Kozinski’s future in the legal profession almost certainly will be decided without the benefit of a robust investigation. At some point, a law school dean may have to weigh whether to place him in a position of trust over budding legal careers. Law firms may need to assess whether he’d be a fair mediator or arbitrator for their clients’ disputes. And the people making those decisions will have to do so without knowing the full scope of his misconduct.
In the absence of an official inquiry, few additional targets of, or witnesses to, Kozinski’s transgressions are likely to speak publicly. They may not want to be seen as piling on. They may think that the moment to speak is over. Or they may have concerns about repercussions in their careers. In writing this piece, I’m the first and only former Kozinski clerk still in private practice to go on the record, by name, with allegations against the judge. And it’s not something I do eagerly. The pressures to remain silent can be overwhelming.
You may wonder if what’s been reported already offers a sufficient basis for an informed evaluation of Kozinski. And the accusations against him — “the currently available one-sided accusations,” as lawyer Joel Cohen put it in an opinion piece for the New York Law Journal when the accuser count was at seven — may seem slight when balanced against the prospect of hiring such an incredible legal mind. Yet the public has gotten only glimpses of how he behaved with female colleagues and employees.
It’s true that the federal judiciary’s inquiry process is highly secretive. In fact, the proceedings are confidential by law. So even if the investigation of Kozinski had moved forward, it might not have added much to the public record. But, as law professor Lara Bazelon noted in a New York Times op-ed, “judges can — and should — publish detailed, well-reasoned opinions about the outcome of those cases to inform the public and maintain confidence in the integrity of the proceedings.”
In a sense, Kozinski is in a position similar to that of Al Franken, who was pressured to resign his Senate seat after harassment allegations emerged but before a Senate Ethics Committee inquiry could get underway. Commenting on Franken’s life after the Senate, Ana Marie Cox wrote in The Washington Post, “My hope is that Franken faces consequences that are appropriate to his mistakes; to go by what we know now, an even metaphorical death sentence does seem too much.” But should futures be determined by “what we know now”? There is peril in getting by on what we know from just a moment in the ever-shortening media cycle.
In the Franken context, there was an assumption that people calling for an investigation were trying to defend and buy time for the senator. And perhaps an investigation would have helped to clear his name. But investigations are not only about defending the rights of the accused. They can be an important forum for victims to air their stories and for witnesses to share what they have seen. They can be critical for determining proportionate punishment and the suitability of redemption. They prevent us from falling back into collective silence.